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States Consider Death Penalty Repeal, Virginia Candidate Explains How She Would Fight Mass Incarceration, and More

Also today: Study measures impact of bail reform in Philadelphia

In This Edition of the Political Report

February 22, 2019:

  • Virginia: Parisa Dehghani-Tafti, a candidate for prosecutor in Arlington, explains how she wants to fight mass incarceration

  • Pennsylvania: Study measures impact of Larry Krasner’s new bail policy

  • Wyoming: Senate rejects abolishing the death penalty but two other states move repeal bills forward

  • Legislative roundup: Youth justice bills introduced in Maryland; Missouri mulls early release; Iowa and Kentucky consider expanding voting rights

You can visit The Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration. You can also visit our page on criminal justice developments in state legislatures, featuring a new interactive map.

Virginia: Parisa Dehghani-Tafti, a candidate for prosecutor in Arlington, explains how she wants to fight mass incarceration

Arlington County and Falls Church City, in Northern Virginia, are voting for their prosecutor this year. Theo Stamos, the incumbent commonwealth’s attorney who has drawn criticism from proponents of criminal justice reform on such matters as bail and voting rights restoration, faces a challenge from Parisa Dehghani-Tafti, the legal director of the Mid-Atlantic Innocence Project and a former public defender. The two will face off June 11 in the Democratic primary.

The Political Report talked to Dehghani-Tafti this week about the goals she has in mind when promising to “dismantle mass incarceration,” about the role she thinks prosecutors and their state association (the Virginia Association of Commonwealth’s Attorneys) play in mass incarceration, and about the reforms she is proposing on youth justice, bail reform, discovery, and other issues. Below is a lightly edited excerpt. You can read the full interview here.

Why do you think the position of commonwealth’s attorney is a good place from which to change this situation? Theo Stamos, the incumbent, reacted to your candidacy by stating, “If she wants to decriminalize marijuana, she should go to Richmond.” So what makes this a relevant office from which to fight mass incarceration?

Prosecutors are the head law enforcement, or public safety official, within the court system. And they’re the ones who ultimately decide what the priorities are in terms of what gets prosecuted, what the priorities are in terms of what amounts of the community engagement they have. … Prosecutors are content with the public not really knowing what they do on a day-to-day basis, because maybe if people knew they wouldn’t get re-elected. … They’re saying, ‘All I do is enforce the law, I don’t make it, and if you want reform go to your legislature.’ Yet when it comes time to reform, when legislators propose bills, … the Virginia Association of Commonwealth’s Attorneys is down in Richmond every single day of session, and opposes reform after reform after reform, and these bills get killed. This is a shell game of prosecutors saying, ‘We have no discretion, we just follow the law,’ and then turning around and making sure that none of their tools are taken away from them.

That gets to a question I had on the Virginia Association of Commonwealth’s Attorneys, which, as you just said, lobbies for or against certain changes in Richmond. You mentioned their opposition to bills to decriminalize small amounts of marijuana, or they’re now calling for a bill to expand prosecutors’ ability to file murder charges in the aftermath of a drug overdose. So how would describe the attitude that you would have toward the association if you were elected, in terms of your involvement and membership in it?

When I’m elected, I’ll have to see. I’m hoping that I’ll be elected with a wave of other reform prosecutors—there are six of us up for election this year. I think if there is a way to transform the association, I would like to be a part of that. If there’s not, right now they don’t speak for me.

The new executive director, I believe his priority is to pass the homicide law that you were just talking about, and I don’t think that’s going to stop people from overdosing. I think what it’s going to do is that it’s going to cause more deaths because people are going to be afraid to call in overdoses. That doesn’t keep us safer. I think that law is designed as part of the toolkit that prosecutors want, a laundry list of capital offenses, lots of low-level drug crimes, low felony thresholds: These kinds of laws give them enormous power to compel guilty pleas and raise their conviction rates. But I can’t under the best of circumstances imagine a way in which preventing someone from calling in a drug overdose makes us safer.

Are you concerned that a prosecutor’s job makes it inherently constraining for someone who is interested in overhauling the system? In December, the Harvard Law Review published a note that stated, “Tweaking the criminal legal system by introducing nontraditional prosecution methods ignores the fundamental truth that this system was never intended to keep marginalized people safe.’” How do you think about, or how would you respond to, this criticism that reforming the system from the inside risks not going far enough?

I think it’s a legitimate concern, but I think that working on the system from the outside also has its drawbacks. I have been working on creating a fairer and more just and more accurate justice system from the outside for almost 20 years. The thing that drove me to try to effect change from the inside is the parable where the villagers start to see babies coming down the river, and they’re plucking the babies out of the river, and then one person starts walking upstream, and everybody says why are you walking upstream, help us get the babies out of river, and the individual says, ‘Well, I’m going to see who is throwing them in.’ I’m not a naive idealist, I understand that people do bad things, and there needs to be appropriate punishment, and we need to create communities safe. But I think at the end of the day, we need to try to effect change from the inside. The data that we have from organizations like the center for Fair and Just Prosecution shows that these reforms can work. I don’t think we’ll ever have a perfect system, but right now I think going in on the inside and trying to reform based on evidence and based on data is about the only choice we have.

You can read the rest of my interview with Parisa Dehghani-Tafti, including her views on bail reform, the death penalty, and marijuana prosecutions here.

Pennsylvania: Study measures impact of Larry Krasner’s new bail policy

In February 2018, a month after becoming the district attorney of Philadelphia, Larry Krasner announced a new policy meant to limit the use of monetary payments as a condition for pretrial release—a widespread practice that leads to differentiated outcomes based on people’s financial means. The policy was to not seek cash bail from people charged with some misdemeanors and nonviolent felonies.

Aurelie Ouss and Megan Stevenson, professors at the University of Pennsylvania and George Mason University, released a study this week assessing the policy’s impact at the one-year mark. The study’s jist:

  1. The study finds that the share of eligible defendants released on recognizance (and thus without monetary conditions) grew 12 percentage points during the past year. They also find that the share who spent at least one night in jail pretrial decreased 5 percentage points. However, they find no statistically significant impact on longer-term detentions.

  2. There being any effect is in and itself noteworthy because prosecutors’ recommendations are not binding on bail commissioners. The authors write that the results “demonstrate the role of prosecutors in determining outcomes over which they have no direct authority.” Nevertheless, there are also signs that the judiciary is blunting the reform’s impact. Samantha Melamed reports in the Philadelphia Inquirer that bail commissioners are still imposing bail on most of the felony cases, and on some of the misdemeanor cases, for which Krasner’s policy is to not seek bail.

  3. Critics of bail reform argue that it could enable people to commit new offenses and to evade their court dates. But the study finds that the county’s decreased reliance on monetary payment and pretrial detention had no ill effect on any of three measures they tested: “failing to appear court (FTA); being charged for a new offense; and being charged for a new serious offense.” The authors write: “We find no evidence that any of these outcomes got worse when defendants no longer had monetary bail or other conditions of release. These results demonstrate that monetary bail can be replaced by release on recognizance for a sizeable number of defendants with no detectable impacts on non-appearance or pretrial crime.”

Krasner touted this study and his policy in a news conference Tuesday with Mayor Jim Kenney. “When you don’t tear apart people’s lives, and when you keep them in contact with the things that keep them on course, they are less likely to commit crimes in the future,” he said. He also urged the judiciary to limit the use of monetary conditions in more cases in accordance with his policy. Elsewhere in the country, as in New York, district attorneys and their associations have led the charge against efforts to reform the bail system.

A standalone version of this article is available here.

Wyoming: Senate rejects abolishing the death penalty but two other states move repeal bills forward

The Wyoming Senate on a 18-12 vote rejected legislation that would have abolished the death penalty. The bill, which was sponsored by Republican lawmakers Jared Olsen and Brian Boner, had cleared the state House two weeks before. That alone was a significant step because the lower chamber had rejected similar legislation in each of the previous four years.

Proponents of abolition had argued that retaining the death penalty is too costly given the legal defense fund that the state maintains, even if there is no one on its death row. They also pointed to the potential for error. “It is impossible to impose the death penalty without mistakes, and the American criminal justice system provides no reliable safeguards against the execution of innocent people,” three men who were on death row before being exonerated wrote in an op-ed published Feb. 14 in the Wyoming Tribune Eagle. “Remember, there’s no reversing a wrongful execution.”

The Senate’s only three Democrats voted in favor of repeal, as did nine Republicans. Eighteen Republicans voted to keep the death penalty. One of the latter, Lynn Hutchings, offered a theological explanation. “The greatest man who ever lived died via the death penalty for you and me,” she said. “If it wasn’t for Jesus dying via the death penalty, we would all have no hope.” Others who opposed abolition defended the death penalty’s utility as a tool prosecutors can invoke when dealing with defendants.

Matt Redle, a former prosecutor, testified against abolition on behalf of the Wyoming County & Prosecuting Attorneys Association, a group that represents the state’s prosecutors. Redle told a Senate committee that 18 of the state’s 23 elected prosecutors were against repeal, while one backed it. I asked Redle which prosecutors held which position, and who were the four prosecutors who held neither position. He explained that he had reached out via email to those whose contact information he had, and that he had told them he would keep their individual stances confidential, in part to “encourage the maximum degree of honesty possible.”

The repeal bill was primarily championed by a coalition made up of the ACLU of Wyoming, the Catholic Diocese of Cheyenne, and the League of Women Voters of Wyoming. Susan Simpson, the league’s president, told me that success would require forming a broader coalition, and specifically getting the support of more religious denominations. “We need Episcopalians and LDS (The Church of Jesus Christ of Latter-day Saints) to the extent possible,” she wrote in an email.

Marguerite Herman, the group’s lobbyist, added that progress relative to past years will help in the years ahead. “The effort started small and local and grew as we gained publicity through the session,” she wrote in another email, pointing to the involvement of new actors such as Witness to Innocence, a the national organization. “Awareness and apparent chance of actually succeeding will be useful in building support for future efforts.”

Legislation to abolish the death penalty also failed Wednesday, though at a much earlier stage of the process, in the Montana House Judiciary Committee.

However, two states moved forward on death penalty abolition over the past week.

In Washington, the Senate voted Friday to abolish the death penalty. The legislation now moves to the House. Washington’s Supreme Court already struck down the death penalty in October. The court pointed to a study documenting stark racial disparities in its application to rule that it was applied in an “arbitrary and racially biased manner.” This ruling left the door ajar for a legislative fix. SB 5339 looks to shut that door.

In New Hampshire, a House committee voted Wednesday in favor of an abolition bill. The bill now moves to the House floor. As I reported in November, the state’s 2018 elections gave abolition a veto-proof majority in the Senate and a likely one in the House.

Legislators have introduced bills to abolish the death penalty in other states, though they have yet to be voted on.

A standalone version of the article is available here.

Legislative roundup: Youth justice bills introduced in Maryland; Missouri mulls early release; Iowa and Kentucky consider expanding voting rights

Iowa: A month after Governor Kim Reynolds proposed a constitutional amendment to restore the voting rights of people who complete a sentence for a felony conviction, the Des Moines Register released a poll this week that found that 64 percent of Iowans favor such a reform. But Kira Lerner reports in The Appeal that some lawmakers are demanding that the proposal include a requirement that people pay all restitution before regaining their voting rights. This would create a system where differences in financial ability affect whose rights are restored. Reynolds has the ability to act by executive order to re-enfranchise thousands of Iowans, as Democratic Governor Tom Vilsack did in 2005. Governor Terry Branstad, Reynolds’s Republican predecessor, rescinded Vilsack’s order, and Reynolds has chosen to keep it that way.

Kentucky: Kentucky’s harsh disenfranchisement statutes deprive more than one in four Black Kentuckians of the right to vote, according to the Sentencing Project. In December, I explored efforts to expand voting rights in the state, and a new effort just got off the ground: Senate Bill 238, filed last week by Senator Morgan McGarvey, would restore people’s voting rights once they complete their sentences for most felony convictions. The bill, which must be approved by lawmakers and then by voters, includes exceptions for certain crimes. It is backed, among other groups, by Americans for Prosperity, a conservative group that may have sway on the GOP lawmakers who govern the state.

Lawmakers have also introduced bills to reform the process by which some people can petition to expunge low-level felonies and regain their rights. That requires a prohibitive $500 fee, one of the country’s highest, which connects differences in financial capacity with the ability to regain voting rights. House Bill 155 would expand the expungement process, and reduce the fee to $200; Senate Bill 215, also introduced by McGarvey, would reduce the fee to $20. Governor Matt Bevin, a Republican who is up for re-election this year, recently expressed his comfort with the status quo. “When I hear a person who has a brand new $500 tatoo who tells me they don’t have $500, it’s hard for me to believe it,” he said.

Maryland: Children as young as 7 can face charges in the state’s juvenile justice system. Proposed legislation (House Bill 659) would restrict the circumstances under which children younger than 12 can be incarcerated. “Detention may not be continued beyond emergency detention for a child under the age of 12 years unless the child is alleged to have committed an act that, if committed by an adult, would be a crime of violence,” says the bill. This is just one of a range of bills introduced in the legislature this year to reform the juvenile justice system; House Bill 418, for instance, seeks to make the transfer of minors into adult court more difficult.

Missouri: Two bills expanding early release are moving forward in the House, reports the St. Louis Post-Dispatch. The first (House Bill 113) would authorize judges to order the release of individuals after a shorter period of time than their sentence mandates. The bill would not apply to higher categories of offenses. HB 113 is supported by Speaker Elijah Haahr and by the Missouri Department of Corrections, which says it would affect hundreds of incarcerated individuals, but not by the Missouri Association of Prosecuting Attorneys. Greene County Prosecuting Attorney Dan Patterson, the association’s president-elect, said increasing judicial discretion would make for uneven sentencing. The second bill (House Bill 352) would grant  parole hearings to individuals who are serving lifetime sentences, are older than 65, and have served at least 30 years. The bill would apply only to individuals who have been convicted of a single felony.

You can visit our legislative roundup page for more on states’ legislative debates.

Thanks for reading. We’ll see you next week!